Behari Lal and Others vs Jai Singh and Others

D.K. Mahajan, J.—This second appeal is directed against the concurrent decisions of the Courts below dismissing the plaintiffs'' suit. This is a litigation which has had a very tortuous course. It is therefore, necessary to clearly set out the relevant facts. The land in dispute was owned by ancestors of Harjang Singh defendant No. 5. Lekal, Jeona and Kalu sons of Kharka were the occupancy tenants under the landlords. The occupancy tenancy was u/s 5 of the Punjab. Tenancy Act as applicable to the erstwhile State of Patiala The occupancy tenant effected mortgage of their occupancy holdings to secure an amount of Rs. 1700 in favour of the ancestors of the plaintiffs. The pedigree-table of the parties is set out below :

The mortgage was effected on the 27th June, 1924 Bk, or the year 1867 A.D. Along with the land which was mortgaged some other land was also mortgaged. The possession of the entire land was given to the mortgagees.

The mortgagees in their turn mortgaged their mortgagee rights to Kehar Singh ancestor of defendants 1 to 4. Defendant No. 1 is a set of 5 persons, namely, Jai Singh and his four brothers. Defendant No. 2 is Nand Singh, Defendant No, 3 is Jangir Singh son of Chand Singh and defendant NO. 4 is Mst. Rattan Kaur widow of Chand Singh, One of Kesar Mill''s descendants, namely, Shadi Ram brought a suit for redemption of mortgage of the mortgagee rights. This suit was contested by the second mortgages on the ground that there was no mortgage in favour of the ancestors of Shadi Ram plaintiff. However, the suit was decreed for possession by redemption on the 6th of April, 1951 and on the 25th of September, 1952, possession was delivered in execution of the redemption, decree. The defendants in this suit, however, managed to dispossess Shadi Ram within a period of two months. Criminal litigation ensued between the parties and finally it was held by the High Court that the parties should get their rights settled in a Civil Court. In the meantime Harjang Singh defendant No. 5 who was the successor of the original landlords sold the landlords rights to defendants 1 to 4 for a consideration of Rs. 4,400.

On the 13th of January, 1955 sons of Shadi Ram brought the present suit for possession of the land on the ground that the mortgage in their favour by the occupancy tenants had become irredeemable by reason of the lapse of the period of limitation prescribed under Article 148 of the Limitation Act. i.e. 60 years and therefore they had become the owners of the land and would be entitled to its possession. This suit was contested by defendants 1 to 4 who has already stated had purchased the landlords rights. Various pleas raised by the parties are indicated by the issues that were framed in the case. These issues are as follows :

Was the land in dispute along with other land mortgaged with the predecessors-in interests of the plaintiffs on 27th June, 1954 for Rs. 1700 by Lekal and Jeona the occupancy tenants?

Did the right of redemption of Lekal and Jeona and their successors in-interest extinguish by season of lapse of the statutory period and thereby did the plaintiffs step in the shoes of Lekal and Jeona as accupancy tenants ?

Did the predecessors-in-interest of the plaintiffs mortgage their rights in the land in dispute to defendants Nos. 1 and 2 for Rs. 850 at different times ?

In case of proof of issue No. 3 did Shadi Ram the father of the plaintiffs redeem that mortgaged-land from defendants Nos. 1 and 2 and get back the possession of the land on 25th September, 1952 ?

Have the plaintiffs instead of Harjang Singh defendant No. 5 the original owner, become the full owners of the land in dispute by virtue of the provisions of Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act ?

Have the plaintiffs been dispossessed by defendants Nos. 1 to 8 within 12 years ?

Have Lekal and Jenoa the original occupancy tenants died leaving to heir and thereby has Harjang Singh defendant No. 5 the original landlord become full owner of the land ?

Has this court no jurisdiction to hear this suit ?

Is the suit within time ?

Have defendants No. 1 become the owners of the land by way of adverse possession ?

Is there any defect of non-joinder of the necessary parties ?

Is the court-fee not rightly paid ?

Have the plaintiffs locus standi to sue ? It is not necessary to set out the findings of these issues because the controversy before me has only been confined to issue Nos. 2, 5 and 7.

Mr. Mittal learned counsel for the plaintiffs in the first instance contended that the finding of the lower appellate Court that the mortgage was still subsisting and that the plaintiffs had not become owners of the mortgaged land cannot be sustained. His contention that this finding has been based on the consideration of the document Exhibit D.E. If Exhibit D.E. is ruled out of consideration admittedly the mortgage is beyond 60 years and therefore there is no question of the landlords being entitled to the land as the mortgagees have become owners of the same. It is not disputed that if Exhibit D.E. has been rightly admitted in evidence the finding of the Courts below would be correct. The burden of the argument is that Exhibit D.E. should have been ruled out of evidence. The reasons advanced for this contention are (i) that this document was not relied on in the list of reliance filed at the time of the filing of the written statement; (ii) that this document was not produced at an earlier stage of the trial. The document was put in on the last date of hearing when the defendant closed his case. The stamp and the penalty on the document were also paid on that date. Therefore according to the learned counsel the provisions or Order VI rules 2, and 4 of the CPC have been violated. These provisions are in these terms :

Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, shall, when necessary, be divided into paragraphs, numbered consecutively, dates, sums and numbers shall be expressed in figures.

In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may hi necessary beyond such as are exemplified in the forms aforesaid particulars (with dates and items if necessary) shall be stated in the pleading.

It is clear from the language of these rules that the contention of the learned counsel is correct. The learned counsel further fortifies his contention by a reference to another fact, namely, that the plea of the plaintiffs, that the mortgage in their favour being more than 60 years old, the plaintiff, by reason of this fact had become owners of the suit land, it was not pleaded by the defendants in the written statement that by reason of the document Exh. D.E. the period of limitation had not run out and the mortgage was still subsisting. For this purpose reliance is placed on Order 8 rule 2 and Order 13 rules 1 and 2 of the Code of Civil Procedure. This contention also has merit. If the matter rested merely on the question of the admissibility of Exhibit D.E., the appeal may have succeeded. Rut in this case, this does not follow as well be presently stated.

Mr. Nehra learned counsel for the defendants on the other hand contended that no objection was raised to the admissibility of this document at the time when it was tendered into evidence and he further contends that before the lower appellate Court no such grievance was made. I, however, find that before the lower appellate Court grievances was made on this score. In the lower appellate Court, an express objection to Exhibit D.E. was taken by the plaintiffs, but it is not so as far as the trial Court is concerned. The reason for this may be that the plaintiffs were not aware that this document had been put in particularly when it was put in at the time when the defendants and closed their case. In any case mere putting in of the document and its acceptance by the trial Court will not make the provisions of Order 6 rules 2 and 4 redundant. In this situation to do substantial justice between the parties I would have remanded the case after permitting the parties to amend their pleadings. But it is not necessary to resort to this course as the case gets settled on another point.

That point is that the defendants Nos. 1 to 4 have stepped into the shoes of the landlords and as all the occupancy tenants have died out without leaving any heirs, the occupancy tenancy has come to an end and any mortgage thereon whether subsisting or not will also come to an end. It will not matter when whether the mortgage by the occupancy tenants has become irredeemable by lapse of 60 years under article 148 of the Limitation Act. The rule is that the mortgagee rights acquired from an occupancy tenant come to an end when he leaves no heirs u/s 59 of the Tenancy Act, The same result would follow when those rights are adversely possessed by another person. The adverse possessor of those rights can enjoy them only so long the occupancy tenant or his descendants or his heirs u/s 59 of the Tenancy also come to an end and the land vests in the landlord free from all such rights particularly when such rights were not created by the tenant with the consent of the landlord. In this connection reference may be made to the Division Bench decision of the Lahore High Court in Court of Wards Guru Amarjit Singh v. Devi Dawala AIR 1938 Lah. 625 = 90 P.L.R. 948 This decision does settle this appeal. Mr. Mittal has not been able to refer me to any authority to the contrary. He only referred to a passage in the Tenancy Act by Om Parkash at page 9

That passage is based on the Single Bench decision of the Lahore High Court aforesaid case. This Single Bench decision AIR 1938 488 (Lahore) was reversed in an appeal under clause 10 of the Letters Patent AIR 1938 Lah. 675.

The lower appellate Court has given a finding that all the occupancy tenants who were mortgagees had died before the year 1948. This is a finding of fact and is binding on me in second appeal. It is on the basis of whom this finding that the rule in Court of wards case becomes applicable to the fact of this case.

Faced with this situation Mr. Mital contended that in view of the Farman-i Shahi of 1947 the occupancy rights have vanished because two thirds in the landlords would vest in the occupancy tenants as owners and one-third in the landlords and therefore to the extent of two-thirds of the land his clients would be entitled to a decree. This argument cannot be sustained because no effect was given to this arrangement under the Farman-i Shahi. It is only in those cases this result follows where actual apportionment was made. No such apportionment took place with regard to the land in dispute. Therefore Farman-i-Shahi is of no assistance to the learned counsel for the appellants.

Mr. Mittal then referred to the Abolition of Biswedari Ordinance 2006 Bk. That too is of no assistance to the learned counsel for the appellants because before it came into force the occupancy tights had come to an end and the land had vested absolutely in the landlords. The only other enactment which needs consideration is the Patiala and East Punjab States Union Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. That Act also will be of no assistance for reasons for the which Ordinance is held not be applicable.

In the last resort Mr. Mittal raised a new contention which was not raised in any of the courts below that in Pepsu the period of limitation for redemption was 30 years and not 60 years. This argument is meaningless in view of the rule laid down in Court of Wards Guru Amarjit Singh''s case.

For the reasons recorded above, I am clearly of the view that plaintiffs'' appeal must fail. I accordingly dismiss this appeal with no order as to costs.